Shaw v Attorney General [2007] FJMC 18; Civil Case No 65 of 2005 (13 June 2007)

IN THE RESIDENT MAGISTRATES COURT
AT BA
IN THE WESTERN DIVISION

CIVIL CASE NO.: 65 OF 2005

BETWEEN:

MICHAEL SHAW, Dredge Worker of Nailaga, Ba.
PLAINTIFF

AND:

ATTORNEY GENERAL of the Republic of Fiji.
DEFENDANT

Counsel for the Plaintiff: Dr M S Sahu Khan
Counsel for the Defendant: Ms A. Prasad & Mr R. Green

Date of Hearing: 07/05/07
Date of Judgment: 13/06/07

JUDGEMENT

BACKGROUND

[1] The plaintiff was employed as a dredger since 11/02/85 by the Government of Fiji (Ministry of Agriculture, Fisheries and Forests).

[2] The first dredging project started in 1985 at Rewa when the Rewa River was dredged. This project ended in 1998.

[3] The plaintiff was employed in the Rewa dredging project and he was living in Nausori. He is married with one child.

[4] Upon completion of the Rewa dredge, some employees were transferred to Ba dredging project and others to Labasa dredging project.

[5] The plaintiff was transferred to the Ba dredging project by letter dated 15/06/99 (Exhibit D1 – page 133).

ISSUES FOR DETERMINATION

[6] The plaintiff claims that his transfer to Ba was on a temporary basis whilst the defendant claims that his transfer was on a permanent basis.

[7] If the plaintiff was transferred on a temporary basis then he is entitled to traveling allowance and country allowance if on the other hand he was transferred on a permanent basis then he is entitled to transfer allowance only.

[8] The plaintiff had initially claimed a sum of $342.00 as transfer allowance and on the day of the hearing he abandoned this claim and in cross-examination it transpired that he was paid a transfer allowance of $342.00. He claimed that it was disturbance allowance and not transfer allowance.

TEST CASE AND WILL ALSO AFFECT OTHER CASES

[9] Both parties have agreed that the plaintiff’s case will be a test case and the outcome of this decision will directly affect the cases of:

(i) Takayawa Vosataki –v- A.G – 52/06

(ii) Lepani Matea- v- A.G – 64/05

(iii) Harry Lockwood-v-A.G – 66/05

(iv) Raduva Saumaki-v-A.G – 67/05

(v) Semisi Suluaqalo-v-A.G – 69/05

DOCUMENTS

[10] The plaintiff tendered the following documents by consent:

(a) Conditions and Rules of Employment for Government Unestablished Employees issued by The Joint Industrial Council for Government Unestablished Employees (JIC). (Exhibit P1).

(b) Public Service Commission Circular dated 30/08/05. (Exhibit P2).

[11] The defendant tendered the following documents by consent:

(a) Bundle of documents marked as Exhibit D1.

(b) Plaintiff’s time card – marked as Exhibit D2.

EVIDENCE

[12] The plaintiff gave evidence and the defendant called Colin Simmons, a Senior Technical Officer employed by the Ministry of Agriculture, Fisheries and Forests. Colin has been employed by Ministry of Agriculture since 1980.

[13] The plaintiff was transferred to Ba on 05/07/99. He maintained that his transfer was on temporary basis and thus claimed country allowance of $7.50 per night from 05/07/99 till 31/12/99 and from 01/01/00 to 31/12/01 at the rate of $17.50 per night.

[14] The Ba dredge project finished on 31/12/05 and the plaintiff was informed that he was entitled to a redundancy payment in accordance with the judgment of Watisoni Raibili and Others –v- The Permanent Secretary, Ministry of Agriculture, Fisheries and Forests and the Attorney General Civil Action No. HBC 54 of 1996 a decision of Scott J. In that case it was said that the employees were regarded as "unestablished employees" and the plaintiff fell in the same category.

[15] On 23/08/05 the plaintiff was paid a sum of $9,072.40 as redundancy package (Exhibit D1 at page 69).

SUBMISSIONS

[16] Both counsels have filed written submissions which has been of assistance to me.

TRANSFER TO BA

[17] The plaintiff was transferred to Ba by letter dated 15/06/99 see Exhibit D1 page 65, which reads as follows:

"With the mobilization of dredger Manabatibati to undertake dredging works in the Ba River, it has become essential to transfer you to Ba River Dredging Project under your existing terms and conditions of employment with effect from 05/07/99.

In this posting, you will be entitled to transfer allowance as well as other traveling expenses and cartage of personal effects. You will also be provided accommodation in the Crew Quarters in Ba."

[18] The plaintiff was originally employed on 07/02/85 for a period of three months for Rewa River project but that employment and the project lasted for 13 years.

[19] The defendant did not specify to the plaintiff as to the length of the Ba dredging project but yet maintained that the transfer to Ba was permanent and their only basis for saying that was he was paid transfer allowance.

[20] Colin Simmon’s evidence is that the temporary quarters were provided to safe guard the dredging equipment and he also said that dredging was a temporary job and it was for a limited duration.

[21] The defendant’s attitude was that having paid the transfer allowance the plaintiff was therefore transferred to Ba permanently and it was entirely up to him as to whether he stayed in the crew quarters or whether he found an alternative accommodation to move his family over. The defendant all along knew that the plaintiff has his place of residence in Nausori.

[22] In my view the defendant’s attitude has been most unreal and indeed very high handed. It is unfortunate that the defendant being the plaintiff’s employee had no regard for his or his family’s welfare and as late as 02/05/01 there was still some confusion as to the payment of transfer allowance. (See Exhibit D1 pages 29 & 30).

[23] Although the defendant’s case was that the plaintiff was permanently transferred to Ba in my view its actions suggested that the transfer to Ba was only of a temporary nature and I say this for the following reasons.

(a) The defendant’s own witness Colin Simmons said that the dredging at Ba was a temporary job and it was for a limited duration;

(b) The defendant got the plaintiff and others to enter into a Crew Quarters Agreement and attached thereto was minutes of the barrack committee dated 05/07/93 which incorporated the duties of the committee, the real rules that each members was to be bound by and the disciplinary action to be taken against members in the event of a breach.

(c) According to the letter of 08/02/02 Exhibit D1 page 23 & 25 the plaintiff was in breach of the barrack rules dated 05/07/93 and yet he was allowed further time to pay the arrears of fees. Exhibit D1 page 25 states:

"But because of your pleas, we manage to get you to stay in the barracks."

It is further stated:

"We did that considering the problem you have to face but if you do not honor that and not complying to the agreement, I will be more than pleased to terminate your occupancy of the crew quarters."

(d)

(i) What intrigues me is that the defendant had no intention of keeping all the workers in quarters then why would it tolerate the breaches by the occupants and further what were the pleas made by the plaintiff and what were the problems that the plaintiff faced?

(ii) Why was the plaintiff not told that he broke the rules and therefore must find an alternative accommodation?

(iii) Were the plaintiff and others simply kept in the crew quarters to safe guard the defendant’s equipments?

(e) The defendant knew that the Rewa project went beyond all time estimation. The plaintiff and others were initially employed for a period of 3 months but the project lasted some 13 years. In view of the blow up and the time estimation at Rewa why didn’t the defendant commission a report as to the length of the Ba project. I do not know if a report was commissioned but none have been placed before me. I think a report in this case was really warranted and if it was done then it would have given a clear idea as to the length of the project and the defendant could have told the plaintiff accordingly.

[24] CONCLUSION

The fact is that the defendant did not know the exact length of the Ba project and this is confirmed by Colin Simmons when he said "it was a temporary job for a limited duration". The plaintiff maintained his place of residence in Nausori right throughout the Ba project and is therefore entitled to the country allowance as set out in Exhibit D1 page 121 where paragraph (b) states that the plaintiff will not be entitled to country allowance for the nights that he spent at his usual place of residence.

[25] CALCULATIONS

1. The plaintiff claims 179 nights at $7.50 per night (from 05/07/99 to 31/12/99). The defendant has raised the issue of limitation and I accept that there is merit in that. The claim was filed on 03/10/99 and so the period between 25/07/99 to 03/10/99 will be caught by the statue of limitation which in my calculation is 90 days and this leaves the balance of 89 days x $7.50 = $667.50.

2. The plaintiff claims for 730 nights at $17.50 (from 01/01/00 to 31/12/01). The Ba project finished on 31/12/05 and the plaintiff filed his writ on 03/10/05 so he is entitled to claim at least up to 03/10/05 but it appeared that the plaintiff had limited his claim to come within the jurisdiction of this Court. Since the plaintiff did not seek leave to amend this claim he is confined to claiming for 730 nights which at $17.50 comes to $12,775.00.
   

3. The plaintiff is not entitled to claim for the weekends that he spent at home and confined his claim from 01/01/01 to 31/12/01 and he abandoned the whole of year 2002 and from 01/01/03 to 03/10/03.

[26] Since the plaintiff abandoned almost 1 year 9 months to come within the jurisdiction of this Court I feel that justice demands that I shall not make any readjustments with the figures of $667.50 and $12,775.00 (with respect to nights plaintiff spent at his residence) and I order that the plaintiff be entitle to receive a total sum of $13,442.50 from the defendant as country allowance.

COST

[27] The plaintiff is entitled to the cost of this action and I order the defendant to pay his cost to be taxed if not agreed.

[Mohammed Shafiullah Khan]
Resident Magistrate

13 June, 2007